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Chapter 2: Persons of Concern to UNHCR
This Chapter
� provides an overview of the
various categories of persons
who are of concern to UNHCR.
2.1 Introduction
People who have been forcibly uprooted from their homes can be found inevery region in the world. They have often lost everything — their families,communities, houses, jobs and their sense of security and belonging.UNHCR and its partners assist countries in protecting such persons
collectively referred to as ‘persons of concern to UNHCR’.
Identifying who these persons of concern are is the first step towardsensuring that they are properly protected. Primarily, these include:
� asylum-seekers
� refugees
� stateless persons
� the internally displaced
� returnees
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2.2 Asylum-seekers
When people seek safety in countries other than their own, they are said to beseeking asylum and are known as asylum-seekers.
Most countries expect asylum-seekers to apply to be recognised as refugees.However, even if asylum-seekers do not apply to be recognised — eitherbecause these procedures are not in place, or because the asylum-seeker isnot aware of these application procedures, or because the asylum-seeker isunable or unwilling to access them — they may still be in need of internationalprotection and of concern to UNHCR.
In particular, children in need of international protection but who do notreceive proper support and guidance are often unable to access orunderstand complicated asylum processes. In other situations, women,children and men who are trafficked but may also be in need of internationalprotection may also be physically barred by their ‘exploiters’ from accessingthese procedures. Asylum-seekers may also simply not be aware of theformal asylum procedures. Governments must take proactive measures toensure that such persons are identified at an early stage and provided with anopportunity to seek safety. UNHCR and other humanitarian agencies shouldprovide the necessary support to governments in this endeavour.
2.2.1 Rejected asylum-seekers
Asylum-seekers found not to be in need of international protection arerefused refugee status. Thereafter, they are not normally of concern toUNHCR. However, if countries reject asylum-seekers who, in UNHCR’s vieware refugees, they would remain of concern to UNHCR. UNHCR maysubsequently choose to recognise them as refugees under its own mandateor take steps to ensure they are protected.
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Chapter 2: Persons of Concern to UNHCR
2.3 Refugees
The 1951 Refugee Convention defines the term “refugee” as a person who
has a well-founded fear of persecution for one or more of the following fivereasons (also known as “convention grounds”):
� race
� religion
� nationality
� membership of a particular social group
� political opinion
A refugee must be outside the country of her/his nationality, and unable or,owing to such fear, unwilling to avail herself/himself of the protection of thatcountry. If the person does not have a nationality, it must be established thats/he fears persecution in the country of habitual residence.
Refugees, like all other persons, have a right to family unity. As a result,family members and dependants of a refugee will normally be recognised asrefugees. They have the same rights and entitlements as other recognisedrefugees. It is also possible that individual family members — including thehusband/wife and children of a refugee — are refugees in their own right.
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Chapter 2: Persons of Concern to UNHCR
Box B
The refugee definition explained: the Inclusion Clause
� There is no universally accepted definition of ‘persecution’ in the context of the1951 Refugee Convention. Persecution consists of human rights abuses or otherserious harm, often, but not always, perpetrated in a systematic or repetitive way.Rape, domestic violence, unlawful detention and torture are some examples ofhuman rights abuses. While discrimination may not, in the normal course, amount topersecution, particularly egregious forms of discrimination certainly will. Further, apersistent pattern of discrimination will usually, on cumulative grounds, amount topersecution.
� In determining whether an individual has a well-founded fear of being persecuted, itis necessary to consider the individual’s state of mind as well as the objectivesituation that gave rise to the person’s fear. There must also be a link between thewell-founded fear of persecution and one of the five ‘convention grounds’ — race,religion, nationality, membership of a particular social group and political opinion.
� ‘Race’ as a convention ground is understood in its widest sense to include all kindsof ethnic groups that are referred to as ‘races’ in common usage.
� Persecution for reason of ‘religion’ may assume various forms, including prohibitionof membership in a religious community or prohibition of worship in private orpublic. Serious discriminatory measures imposed on persons because theypractice/do not practice a religion or because they belong/do not belong to aparticular religious community may also be persecutory.
� ‘Nationality’ as a ground for persecution refers not only to citizenship, but also tomembership of an ethnic or linguistic group. Occasionally, it may overlap with theconvention ground of ‘race’.
� A ‘particular social group’ is a group of persons who share a commoncharacteristic other than their risk of being persecuted, or who are perceived as agroup by society. The characteristic will often be one which is innate,unchangeable, or which is otherwise fundamental to identity, conscience, or theexercise of one’s human rights.
� ‘Political opinion’ as a ground for persecution implies that a person holds an opinionthat is not tolerated by the authorities, and that this opinion has come or mostprobably will come to the notice of the authorities. An ‘imputed’ political opinionmay arise when the authorities attribute political beliefs or actions to an individual.
While ‘gender’ is not, in itself, a ‘convention ground’, it is widely accepted that therefugee definition, properly interpreted, covers gender-related claims. Gender-relatedclaims may include, among other things, acts of sexual violence, family/domesticviolence, coerced family planning, female genital mutilation, punishment fortransgression of social mores, and discrimination against homosexuals.
� A person may be unable to avail of the protection of his/her country when, forinstance, a country may be unable to extend proper protection in a state of war, civilwar, or other grave disturbance. A person may also refuse to accept (being unwilling)the protection of her/his country when, for instance, s/he has well-founded fear ofpersecution in this country.
Under UNHCR’s mandate, two categories of persons may qualify for refugeestatus: (1) persons who meet the criteria of the refugee definition contained inthe UNHCR Statute which is nearly identical to the 1951 RefugeeConvention, and (2) persons outside their country of origin who are unable toreturn owing to serious and indiscriminate threats to life, physical integrity orfreedom resulting from generalised violence or events seriously disturbingpublic order.
The refugee definition provided by the 1951 Refugee Convention has also
been built upon by regional instruments — in particular the OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa (1969)
and in Latin America by the Cartagena Declaration on Refugees (1984).
The OAU Convention includes the definition found in the 1951 RefugeeConvention but goes further in including persons compelled to leave theircountry ‘owing to external aggression, occupation, foreign domination orevents seriously disturbing public order in either part of the whole or hiscountry of origin or nationality’.
Similarly, the Cartagena Declaration reiterates the refugee definition foundin the 1951 Refugee Convention and further defines the term to also includepersons who flee their country ‘because their lives, safety or freedom havebeen threatened by generalised violence, foreign aggression, internalconflicts, massive violations of human rights or other circumstances whichhave seriously disturbed public order’. While the Cartagena Declaration isnot, in itself, a legally binding instrument, countries in the region haveincorporated it in their national laws, while others use it to guide them inprotecting refugees.
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2.3.1 Exclusion from international refugee protection
Under certain conditions, persons who meet the criteria for recognition asrefugees are nevertheless denied the protection of the 1951 RefugeeConvention. This is the case for the following categories:
� Persons who are not entitled to the benefits of the 1951 Refugee
Convention: The 1951 Refugee Convention denies international refugeeprotection to individuals who are receiving protection or assistance from a UNagency other than UNHCR. In today’s context, this applies to certain groupsof Palestinian refugees who are inside the area of operations of the UnitedNations Relief and Works Agency for Palestine Refugees in the Near East(UNRWA). If such persons are outside the area of operations of UNRWA,they may be entitled to the protection of the 1951 Refugee Convention.
� Persons who are not in need of international refugee protection: The1951 Refugee Convention provides for denial of refugee status to personswho have taken up regular or permanent residence in a country that hasgiven them a status whereby they effectively enjoy the same rights and havethe same obligations as nationals of that country.
� Persons who are considered undeserving of international refugee
protection: The 1951 Refugee Convention envisages exclusion frominternational refugee protection of persons considered not to deserve suchprotection on account of their having committed certain serious crimes orheinous acts. This applies to persons who are responsible for war crimes,crimes against humanity or crimes against peace. Similarly, those whohave committed serious non-political crimes or acted against the purposesand principles of the United Nations cannot benefit from refugee status.
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Chapter 2: Persons of Concern to UNHCR
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2.3.2 Others not in need of international protection
Migrants who leave a country voluntarily, seeking a better life and who canreturn to their country without fear of persecution are not refugees. Similarly,people fleeing natural disasters are not refugees. There may be situationswhere individuals — including those who are smuggled or trafficked — wholeft their country voluntarily or who were coerced into leaving their country,are in need of international protection after they arrive in another country
Since refugee status is civilian and humanitarian in character, persons who
continue to pursue armed activities cannot be considered to be refugees.
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Box C
The refugee definition explained: the Exclusion Clauses
� War crimes involve serious violations of the laws or customs of war including,but not limited to, grave breaches of the 1949 Geneva Conventions such aswilful killing, torture, inhumane treatment, rape, enforced prostitution,unlawful detention or deportation of persons who have not or are no longertaking part in hostilities, and the destruction or appropriation of propertyprotected under the 1949 Geneva Conventions. War crimes can be committedby civilians or by military personnel.
� Crimes against humanity are inhumane acts that include, but are not limitedto, murder, extermination, genocide, enslavement, deportation, imprisonment,torture, rape and other forms of sexual violence, when committed as part of awidespread or systematic attack directed against the civilian population.Crimes against humanity can occur in peace time as well as during war.
� Crimes against peace include the planning, preparation, initiation, or wagingof a war of aggression or a war that is in violation of international treaties,
agreements or assurances.
� A serious non-political crime is one that is considered serious in mostjurisdictions and that is predominantly motivated by non-political reasons,such as personal gain. Crimes that are politically motivated but that causeindiscriminate harm to civilians and/or are disproportionate to the allegedpolitical purpose, would also be considered non-political for the purposes ofthe exclusion clause of the 1951 Refugee Convention.
� The purposes and principles of the United Nations are set out in the Preambleand Articles 1 and 2 of the United Nations Charter. They relate to thefundamental principles that govern relations between States and to theinternational community in general. Only serious acts which have an impact oninternational peace, security and peaceful relations between States can fallwithin this category.
Persons who participated in armed conflict but have genuinely andpermanently renounced military activities may be considered as refugees ifthey fulfil the criteria of the refugee definition and do not come within the
scope of an exclusion clause.
2.3.3 Cessation of refugee status
Refugee status is temporary in nature. It remains valid until it is establishedthat international protection is no longer necessary or justified. The 1951Refugee Convention contains an exhaustive list of the circumstances underwhich refugee status may cease.
Refugee status ceases if a refugee voluntarily acts in a manner thatdemonstrates that s/he has re-availed herself/himself of the protection of acountry of origin (or former habitual residence). It will also cease when arefugee acquires a new nationality and enjoys the protection of that country.
Further, refugee status may cease when there have been fundamental, stableand lasting changes in the country of origin (or former habitual residence) thatno longer justify the need for international protection. Even if these ‘ceasedcircumstances’ exist, compelling reasons arising out of previous persecutionmay justify the need for continued international protection for some refugees.For instance, it may be unreasonable to expect survivors of torture to return totheir country even if the situation has improved dramatically.
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Chapter 2: Persons of Concern to UNHCR
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2.3.4 Recognising refugees
Countries normally establish procedures to formally recognise refugees.
‘Convention refugees’ is a term often applied to those refugees recognisedby countries based on the refugee definition provided in the 1951 RefugeeConvention.
In some situations, UNHCR recognises refugees in accordance with its
mandate. This normally happens in countries that have not established aprocedure to determine refugee status or in countries where the asylumprocedures are not functioning properly.
Refugee status may be decided on an individual or a group basis under the1951 Refugee Convention, under regional refugee instruments, or byUNHCR under its mandate. If large numbers of people have fled persecution
or conflict, they are often considered as refugees on a prima facie basis. Thisis a practical measure to allow refugees to receive international protectionwithout the formality of undergoing individual refugee status determination.
2.4 Stateless persons
A stateless person is one who is not considered to be a national by any stateunder its laws. A stateless person can also be a refugee when, for example,s/he is forced to leave her/his country of habitual residence because ofpersecution. However, not all stateless persons are refugees, and not allrefugees are stateless.
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2.4.1 Some causes of statelessness
Sometimes governments do not realise that they are creating statelesspersons. This may happen when the laws of two countries conflict with eachother and a person does not qualify as a national of either country with whichs/he is associated.
For instance, in some countries, if a man or woman marries a foreigner, s/heloses her/his nationality and is expected to take on the nationality of thespouse. But there is no guarantee that the country of the spouse will granther/him citizenship. The laws of many countries discriminate against womenwith regard to nationality issues.
In other situations, a child born in a foreign country may not be recognised bythe country of birth because the parents are foreigners. At the same time, thecountry of his/her parents may not recognise the child because the birthoccurred outside its territory.
Countries may also arbitrarily revoke or deny citizenship to certain individualsor groups because of their ethnicity, religion, gender, race, or other reasons.Failure to register birth in some countries may result in statelessness.
Chapter 2: Persons of Concern to UNHCR
2.4.2 Some effects of statelessness
Since stateless persons do not have the protection of any country, they oftenlack access to education, jobs, and health care. Many cannot register theirmarriage or the birth of their children or acquire identification or traveldocuments. Often, they have no sense of belonging or identity.
Statelessness can sometimes create instability within a country and mayeven result in conflict and the displacement of people.
2.4.3 UNHCR and stateless persons
Because refugee and statelessness problems sometimes overlap and maybe linked, the UN General Assembly mandated UNHCR to work to preventstatelessness and to act on behalf of stateless persons.
UNHCR assists stateless persons in resolving their legal problems, obtainingdocumentation, and eventually restarting their lives as citizens of a country.UNHCR also provides technical and legal advice to governments on nationalityissues, including assistance in drafting and implementing nationality legislationdesigned to prevent and resolve situations of statelessness.
UNHCR encourages countries to accede to two international instrumentsrelating to statelessness:
� the 1954 Convention relating to the Status of Stateless Persons, whichaims to ensure a basic standard of treatment for all stateless persons; and
� the 1961 Convention on the Reduction of Statelessness, which aims toavoid all future cases of statelessness.
2.5 The Internally Displaced
The internally displaced are people who have been forced to flee their homesas a result of armed conflict, situations of generalised violence, violations ofhuman rights, or natural or human-made disasters. While the problems ofrefugees and the internally displaced are often similar and interlinked, unlikerefugees who have crossed an international border, the internally displaced
remain uprooted within their own country.
There are over 25 million internally displaced persons living in some 50countries around the world. Very often, their own governments are unable orunwilling to protect them. In these circumstances, the internally displacedneed the protection and support of international humanitarian agencies.
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2.5.1 The Guiding Principles on Internal Displacement
In 1998, the United Nations adopted the Guiding Principles on InternalDisplacement. Based on standards enumerated by human rights, refugeelaw and international humanitarian law, the Guiding Principles provide aframework to prevent internal displacement and to protect and find solutionsfor those who have been displaced. While the Guiding Principles are notbinding, some countries have incorporated them in their national laws, thusbinding themselves to their implementation.
2.5.2 UNHCR and the internally displaced
UNHCR has been supporting governments in protecting and assistinginternally displaced persons since 1972.
UNHCR works alongside other UN, governmental and non-governmental
agencies in a collaborative response to protect and assist persons whohave been internally displaced as a result of armed conflict, situations ofgeneralised violence and violations of human rights. Members of thecollaborative response address the issue of internal displacement on thebasis of their respective mandates and expertise.
Where a collaborative response is used to protect the internally displaced,UNHCR takes a lead to ensure that protection issues (including return of theinternally displaced), camp co-ordination and emergency shelter issues are
effectively addressed.
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Chapter 2: Persons of Concern to UNHCR
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2.6 Returnees
UNHCR works to ensure that uprooted women, men, girls and boys canvoluntarily return to their homes in safety and with dignity. Upon return, theyand their families should have access to shelter, food, medical care,education, a livelihood, and the judicial system — just like any other citizen.
In many situations, UNHCR and its partners continue to work with returneesin their country of origins until they are successfully reintegrated into theircommunities.
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Chapter 2: Persons of Concern to UNHCR
Further Reading
Electronic copies of these documents in English have been provided in the accompanyingProtection Induction Programme CD-ROM. Click on the ‘Library’ button to access them.
Asylum-seekers and Refugees
� Refugees by numbers, UNHCR, September 2004.
� Protecting Refugees: Questions and Answers, UNHCR, October 2005.
� Self-Study Module 2: Refugee Status Determination. Identifying who is a Refugee,UNHCR, 1 September 2005.
� Handbook on Procedures and Criteria for Determining Refugee Status under the 1951Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, secondedition, January 1992.
� Guidelines on International Protection No. 1: Gender-Related Persecution within thecontext of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to theStatus of Refugees, UNHCR, HCR/GIP/02/01 of 7 May 2002.
� Guidelines on International Protection No. 2: “Membership of a Particular Social group”within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocolrelating to the Status of Refugees, UNHCR, HCR/GIP/02/02 of 7 May 2002.
� Guidelines on International Protection No. 3: Cessation of Refugee Status under Article1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “CeasedCircumstances” Clauses), UNHCR, HCR/GIP/03/03 of 10 February 2003.
� Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative”within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relatingto the Status of Refugees, UNHCR, HCR/GIP/03/04 of 23 July 2003.
� Guidelines on International Protection No. 5: Application of the Exclusion Clauses:Article 1F of the 1951 Convention relating to the Status of Refugees, UNHCR,HCR/GIP/03/05 of 4 September 2003.
� Guidelines on International Protection No. 6: Religion-Based Refugee Claims underArticle 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status ofRefugees, UNHCR, HCR/GIP/04/06 of 28 April 2004.
� Guidelines on International Protection No. 7: The Application of Article 1A(2) of the1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims ofTrafficking and Persons at Risk of Being Trafficked, UNHCR, HCR/GIP/06/07 of 7 April2006.
� Procedural Standards for Refugee Status Determination under UNHCR’s Mandate,UNHCR, 1 September 2005.
Stateless Persons
� The World’s Stateless People: Questions and Answers UNHCR, April 2004.
� Nationality and Statelessness: A Handbook for Parliamentarians, Inter-ParliamentaryUnion and UNHCR, 2005.
The Internally Displaced
� Internally Displaced Persons: Questions and Answers, UNHCR, September 2004.
� Guiding Principles on Internal Displacement, United Nations, documentE/CN.4/1998/53/Add.2 of 1998.
� Internally Displaced Persons: The Role of the United Nations High Commissioner forRefugees, EC/50/SC/INF.2 of 20 June 2000.
� Implementing the Collaborative Response to Situations of Internal Displacement:Guidance for UN Humanitarian and/or Resident Coordinators and Country Teams,Inter-Agency Standing Committee, September 2004.
